Case: 22-30297 Document: 00516683514 Page: 1 Date Filed: 03/21/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 21, 2023
No. 22-30297 Lyle W. Cayce
Clerk
Anastasia Nedd Allen,
Plaintiff—Appellant,
versus
United States Postal Service, Louis DeJoy, Postmaster
General,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-304
Before Barksdale, Southwick, and Higginson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Plaintiff-appellant Anastasia Nedd Allen brings claims of age
discrimination and retaliation against her former employer, the United States
Postal Service (“USPS”). The district court granted summary judgment to
USPS on all of Allen’s claims. Allen now appeals. For the following reasons,
we AFFIRM in part and REVERSE and REMAND in part.
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I.
In April of 2018, USPS hired Allen as a “city carrier assistant” subject
to a ninety-day probationary period. At all relevant times, Allen was either
fifty-three or fifty-four years old. Allen was assigned to the North Central
Carrier Station (“Central Station”) in New Orleans. In July, before her
probationary period lapsed, station manager Joseph Porche fired her. In
August, Allen initiated Equal Employment Opportunity (“EEO”) contact
regarding her termination. She alleged that USPS fired her because of her
age, marital status, and disability, and also alleged a hostile work
environment. 1 In November, Allen and USPS resolved the complaint in a
written settlement, pursuant to which Allen would be reinstated as a carrier
assistant. Allen asserts that she asked Porche not to put her on another
probationary period, and Porche replied that “he does not like to hire older
workers because they tend to get hurt and go on restriction until they retire.”
According to Allen, Porche said that “he did not need another carrier with
restrictions on his clock.” On December 8, 2018, Allen began her reinstated
position at Central Station, subject to a renewed ninety-day probationary
period.
The facts and circumstances of Allen’s second period of employment
are disputed. USPS submitted summary-judgment evidence that Allen was
“inefficien[t],” “result[ing] in expanded street time and delayed mail, which
cost the USPS additional money.” An employee evaluation form indicated
that, as of January 7, 2019—thirty days into Allen’s renewed probationary
period—Allen’s performance was “unacceptable” in three of the six areas
subject to evaluation: work quantity, work quality, and dependability. Her
1
The summary-judgment record does not contain Allen’s 2018 EEO complaint,
but USPS does not dispute that these claims formed the basis of the complaint.
2
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performance was “satisfactory” in the areas of work relations, work
methods, and personal conduct. At the sixty-day mark, Allen’s performance
was deemed “unacceptable” in all six areas. According to a declaration by
her supervisor, Charlotte Lagrue, Allen’s “deficiencies include[d] poor
scanning, clock ring errors, and delaying the delivery of mail.” Lagrue also
attested that Allen “gets distracted and forgets important items that she
needs to complete her task[s],” including her scanner. According to USPS,
Allen “was not receptive to feedback.” She “was advised of her deficiencies
during her probationary period[,] and her work did not improve.”
Allen’s summary-judgment evidence tells a different story. Her most
substantial piece of evidence is her own twelve-page affidavit, in which she
asserts that her USPS supervisors generally undermined her efforts to
succeed in her reinstated position. She writes specifically that “Porche and
Lagrue set [her] up to fail so Porche could terminate [her] for poor
performance.”
Allen includes specific factual allegations supporting her version of
events. She attests that Lagrue instructed her to “clock in daily to the street
time code upon [her] arrival at work,” which forced her to “perform office
duties while on street time,” thus creating “the appearance of expanded
street times.” Further, according to Allen, the “[d]elayed mail was due to
Supervisor Lagrue hiding mail from [her] and not giving [her] an arrow key
to open mail receptacles on [her] route.” Allen also attests that Lagrue
“refused to let [her] sort . . . and prepare [her] mail for delivery . . . before
leaving the station.” According to Allen, another carrier sorted her mail, “so
it was often mis-sorted.” “Dealing with missorted mail added to [her] street
time and resulted in delayed mail.” Allen also states in her affidavit that
Porche and Lagrue “altered [her] clock rings to reflect street time rather than
actual office time.” She attests that Porche and Lagrue would hide mail and
parcels from her before she left on her route, and then would call her back,
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claiming that she had left mail and parcels. According to Allen, she did not,
as Lagrue says, leave her scanner in the building. Allen says that her scanner
was “taken by someone” when she went to the restroom, and she could not
leave to deliver mail until she received another scanner.
Allen also attests to specific remarks made by Porche and Lagrue. In
addition to her claim that in November 2018 Porche said he disfavors hiring
older workers, Allen asserts in her affidavit that, when Porche would give her
instructions, “he would always end the conversation by stating ‘this is not a
setup’ with a smirk on his face.” Allen also states that, at some unspecified
time, Lagrue told her to “get [her] old ass back to work.”
Allen’s affidavit also contains assertions that her supervisors treated
her less favorably than they treated a younger carrier, Chloe Bickman, by not
allowing Allen to sort mail on her routes, to work a consistent route, or to be
off on Saturdays. Allen further asserts that Bickman “never got auxiliary
mail in addition to the daily mail for her route,” while Allen “got auxiliary
mail on a daily basis.” She states that Bickman “was assigned easier mail
routes to cover.” She asserts that she, unlike Bickman, “was given more than
three bundles of mail on a walking route,” was “denied an arrow key when
needed,” and “was not given a voyager card or pin,” and so “had to purchase
gas for the mail truck with [her] own credit card.”
On January 6, 2019, approximately one month into her reinstated
employment, Allen initiated another informal EEO contact. She alleged that
she was being targeted for age-based discrimination and retaliation for her
prior EEO activity. Allen asked Glenn Webster, a shop steward for the
National Association of Letter Carriers, to represent her in connection with
the complaint.
Allen asserts that, on January 18, 2019, she attended a meeting at her
own request with Porche and the shop steward from her first EEO complaint.
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She says that she asked Porche to observe her as she delivered mail and
performed other carrier duties, “to prove [she] did not have performance
issues to him.” Porche had not, according to Allen, observed her personally.
Porche “agreed and said he would walk with [her] by the end of the week,”
but never did.
Allen also recounts an event occurring on January 30, 2019, writing
that Lagrue did not give her the arrow key that she needed to access
“collection boxes, outdoor parcel lockers, cluster boxes units, and apartment
panels on [her] route.” According to Allen, this resulted in her “having to
bring back some mail to the station because [she] could not deliver it without
the key.” She further asserts that there were other times when Lagrue “did
not provide [her] with an arrow key for routes that required it,” and that
Allen “asked for a key whenever the route required one.” Allen says that
“Lagrue would never give [her] the arrow key. She would say that she forgot,
or she would not answer [Allen’s] phone calls to remind her.”
The arrow-key saga continued. Allen attests that on February 22,
2019, when she retrieved her keys for her mail truck, she “noticed that the
arrow key was missing,” and told Lagrue. Lagrue told Allen she would find
an arrow key for her, but she “never looked for the key.” According to Allen,
she told Lagrue that she “needed to leave for the routes as [she] had two
[routes] to cover that day.” She says that while she was out on her routes,
she called Lagrue three times for the arrow key, but Lagrue did not answer
her calls. Accordingly, she “had no choice but to return the mail that
required delivery with the arrow key.” In Allen’s words, “[t]his is another
example of Lagrue setting [her] up to fail during [her] second probationary
period.”
With respect to her performance evaluations, Allen asserts in her
affidavit that Lagrue listed inaccurate dates on the written form. As to the
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thirty-day evaluation dated January 7, 2019, Allen states that no such
evaluation happened on that day, and that it instead took place on January 26,
2019, on her forty-ninth—not thirtieth—day of work. She accordingly
asserts that Lagrue backdated the evaluation form “to give the appearance
that she conducted [Allen’s] evaluation timely on the [thirtieth] day.” In a
similar vein, Allen asserts that her sixty-day evaluation—reportedly on
February 6, 2019—in fact took place on February 16, 2019, and that the
evaluation form was backdated in this respect as well. Given that the
evaluations happened only twenty-one days apart, according to Allen, she did
not have “sufficient time to get the proper training and improve [her]
performance.” Lagrue, in her declaration, denies backdating any of Allen’s
evaluations.
In addition to her own affidavit, Allen submitted the declaration of
Glenn Webster, who, as Allen’s representative in the EEO process,
personally reviewed her entire complaint file. Webster states that Allen’s file
did not contain certain “documentation necessary to substantiate the
termination of her employment during her second[] probationary period.”
He then lists six types of documents that were absent from Allen’s file,
including “PS Form(s) 4588 Observation of Work Practices” that would
show that “Allen’s work practices had been observed by her supervisors and
found to be deficient;” a “PS Form 1813 Late Leaving Report” that would
show that “Allen was using excessive time to deliver mail;” and a “PS Form
1017-A Time Disallowance Record” that would show that “Allen was
extending her time on her mail delivery routes.” Webster further states that
Allen’s file contained certain documentation that did not support her second
termination on account of job performance, including her “Employees
Everything Report,” which “shows ‘Clock Rings/Operations’ being
changed by management personnel daily,” and “[d]ates on the PS Form 1750
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Evaluation/Probation Report” that “conflict[] with actual evaluation
dates.”
USPS fired Allen on February 26, 2019. The letter of separation,
signed by Porche, lists three reasons for Allen’s separation: (1) “Failure to
perform work which meets the expectations of the position,” (2) “Fail[ure]
to accomplish tasks in an efficient and timely manner,” and (3) “Fail[ure] to
work at a sufficient speed to keep up with the amount of work required by the
position.” In March of 2019, Allen filed a formal EEO complaint alleging
that her second termination was based on age discrimination and retaliation
for her prior EEO activity.
In addition to her claims based on her termination from her second
probationary period at Central Station, Allen also brings claims based on
three incidents of non-selection for hire at other USPS locations to which she
applied. First, in February 2019, before her second termination, Allen
interviewed with a USPS location in Metairie, Louisiana. Metairie
Postmaster Matthew McFall attests in a declaration that Allen’s interviewer,
Chad Taylor, recommended her for hire. Allen states in her affidavit that,
after her termination from Central Station, she called Taylor to ask whether
she had been hired in Metairie. According to Allen, Taylor told her that
Porche had said “unfavorable things” about her to McFall, and so McFall
did not hire her. McFall denies speaking to Porche about Allen, and instead
states that when personnel “processed” Allen, they learned that she had
been terminated from the USPS.
Second, in April 2019, Allen interviewed for a position at a USPS
location in Marrero, Louisiana. In May, Allen was informed that she was not
hired. Allen asserts that Porche and Lagrue “gave false and misleading
statements” to the Marrero Postmaster, Alisa Leonard, resulting in her non-selection for the Marrero position. Leonard admits in her declaration that
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she spoke to Allen’s previous manager and supervisor, i.e., Porche and
Lagrue, who told Leonard that Allen “was a difficult employee who
challenged everything they would tell her.” Leonard states that she was told
that “when instructions would be given,” Allen “would go straight to the
union to verify if she had to follow the instruction.” She says that her
“decision not to hire [Allen] was based on the fact that she had been
separated twice for unsatisfactory performance and the information
[Leonard] received from [Allen’s] previous [m]anager and [s]upervisor.”
Leonard denies basing her decision on Allen’s age or EEO activity.
Third, Allen again applied and interviewed for a position at the
Metairie station. Again, Chad Taylor recommended that she be hired.
Though Allen was “initially selected for the position,” she was notified on
May 21, 2019 that the offer was rescinded. The next day, Allen met with
Tracy Segura, a USPS field recruiter. Segura told Allen that she was the
person who rescinded the job offer. The explanation for the recission is
subject to dispute. Segura attests in a declaration that Allen’s offer was
rescinded because she had been separated twice from USPS. Allen, on the
other hand, states in her affidavit that Segura told her that she rescinded the
job offer because Allen was “at war with the post office due to [her] current
EEO activity.” Segura denies saying this and denies having knowledge of, or
access to, Allen’s EEO activity at the time of the recission. Allen also states
that she had a conversation with McFall, the Metairie Postmaster, in May of
2019, and McFall told her that “he rescinded the job offer for the second
Metairie job opening . . . due to [Allen’s] EEO activity.”
Allen amended her EEO complaint to include claims for age
discrimination and EEO retaliation, arising out of her (1) first non-selection
for the Metairie position, (2) non-selection for the Marrero position, and
(3) second non-selection for the Metairie position.
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On October 30, 2019, in a final agency decision, USPS dismissed all of
Allen’s claims of discrimination and advised her of her right to file a civil
action. On January 28, 2020, Allen filed suit in the U.S. District Court for
the Eastern District of Louisiana. USPS moved for summary judgment on all
claims, and the district court granted the motion in full. The court dismissed
as procedurally barred all of Allen’s claims pertaining to her first EEO
complaint in 2018. The district court also dismissed the eight claims
presented by Allen’s second EEO complaint: (1) age discrimination as to
(i) her second termination from Central Station, (ii) her first non-hiring at
the Metairie station, (iii) her non-hiring at the Marrero station, and (iv) her
second non-hiring at the Metairie station; as well as (2) retaliation for her
prior EEO activity as to (i) her second termination from Central Station,
(ii) her first non-hiring at the Metairie station, (iii) her non-hiring at the
Marrero station, and (iv) her second non-hiring at the Metairie station.
The district court entered final judgment in favor of USPS, and Allen
timely appealed.
II.
Allen does not specify in her briefing before us which dismissals by the
district court she appeals. However, not all of her claims are adequately
briefed, and failure to brief an issue on appeal constitutes waiver of the issue.
N. Cypress Med. Ctr. Operating Co., Ltd. v. Cigna Healthcare, 952 F.3d 708,
711 n.3 (5th Cir. 2020); Procter & Gamble Co. v. Amway Corp.,
376 F.3d 496,
499 n.1 (5th Cir. 2004). We accordingly conclude that Allen has abandoned
multiple claims on appeal. First, she does not mention the district court’s
dismissal of her claims pertaining to her first EEO complaint in 2018.
Second, she fails to brief the district court’s dismissal of her claims arising
from her non-selection for hire at the Marrero station. Third, while she
makes various references to her first interview and subsequent non-hiring at
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the Metairie station, she does not provide arguments or legal citations
contesting the district court’s dismissal of her claims arising out of this non-hiring. She instead dedicates her Metairie-related briefing to the contention
that the May 2019 recission of her offer, i.e., the second non-hiring, was
retaliatory. Finally, Allen’s briefing on her second non-hiring at the Metairie
station is confined to her retaliation theory; she does not discuss the Metairie
station vis-à-vis her age-discrimination claims. Allen has therefore
abandoned all of these claims. The district court’s dismissal of these claims
is affirmed.
This leaves three claims on appeal: (1) age discrimination as to her
second termination from Central Station; (2) retaliation as to her second
termination from Central Station; and (3) retaliation as to her second non-hiring at the Metairie station.
III.
We review a grant of summary judgment de novo, viewing all evidence
in the light most favorable to the nonmovant. Badgerow v. REJ Props., Inc.,
974 F.3d 610, 616 (5th Cir. 2020) (citations omitted). Summary judgment is
warranted “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A disputed fact is material if it
“might affect the outcome of the suit under the governing law.”
Id. In
making this assessment, the court “may not make credibility determinations
or weigh the evidence.” Kevin M. Ehringer Enters., Inc. v. McData Servs.
Corp.,
646 F.3d 321, 325 (5th Cir. 2011) (quoting Reeves v. Sanderson Plumbing
Prods.,
530 U.S. 133, 150 (2000)).
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We first address Allen’s age-discrimination claim and then turn to her
retaliation claims.
IV.
The Age Discrimination in Employment Act (“ADEA”) prohibits
employers from firing, refusing to hire, or otherwise discriminating against
any individual with respect to her compensation, terms, conditions, or
privileges of employment, because of her age. 29 U.S.C. § 623(a)(1). Under
the Act’s federal-employee provision, which covers the U.S. Postal Service,
“[a]ll personnel actions affecting employees or applicants for employment
who are at least 40 years of age . . . shall be made free from any discrimination
based on age.”
Id. § 633a(a). This provision “demands that personnel
actions be untainted by any consideration of age.” Babb v. Wilkie,
140 S. Ct.
1168, 1171 (2020) (emphasis added). We generally assess ADEA age-discrimination claims relying on circumstantial evidence under the burden-shifting analysis set out in McDonnell Douglas Corp. v. Green,
411 U.S. 792
(1973). 2 Jackson v. Cal-W. Packaging Corp.,
602 F.3d 374, 378 (5th Cir. 2010).
To establish her prima facie case of age discrimination, Allen must
show that (1) she was discharged, (2) she was qualified for the position,
2
In Babb v. Wilkie, the Supreme Court held that federal-employee ADEA claims
under § 633a(a) do not require a showing of but-for causation. 140 S. Ct. at 1171. At least
one federal court of appeals has interpreted Babb as having “foreclosed using the full
McDonnell Douglas framework regarding ADEA claims . . . as to federal-sector employees.”
Lewis v. Sec’y of U.S. Air Force, No. 20-12463,
2022 WL 2377164, at *10 (11th Cir. June 30,
2022); see Babb v. Sec’y, Dep’t of Veterans Affs.,
992 F.3d 1193, 1204 (11th Cir. 2021)
(“Without quite saying as much, . . . it seems that the Supreme Court accepted Babb’s
argument ‘that the District Court should not have used the McDonnell Douglas
framework.’”). The parties before us have not cited the Supreme Court’s decision in Babb,
and both parties embrace the McDonnell Douglas framework. Because we conclude that
Allen’s claim survives summary judgment even under the more demanding McDonnell
Douglas framework, we do not decide the extent to which Babb renders McDonnell Douglas
an inappropriate means of analyzing § 633a(a) claims.
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(3) she was within the protected class when she was discharged, and (4) she
was “either i) replaced by someone outside the protected class, ii) replaced
by someone younger, or iii) otherwise discharged because of h[er] age.” Id.
(quoting Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007)).
If Allen succeeds on her prima facie showing, the burden shifts to
USPS to articulate a legitimate, nondiscriminatory reason for Allen’s
termination. Id. If USPS does so, the burden shifts back to Allen to show
that the articulated reason is pretextual. Id. She may show pretext “either
through evidence of disparate treatment” or by showing that USPS’s
“proffered explanation is false or ‘unworthy of credence.’” Moss v. BMC
Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (quoting Laxton v. Gap Inc.,
333 F.3d 572, 578 (5th Cir. 2003)). A plaintiff’s “prima facie case, combined
with sufficient evidence to find that the employer’s asserted justification is
false, may permit the trier of fact to conclude that the employer unlawfully
discriminated.” Goudeau v. Nat’l Oilwell Varco, L.P.,
793 F.3d 470, 476 (5th
Cir. 2015) (quoting Reeves,
530 U.S. at 147-48).
We conclude that there are issues of fact precluding summary
judgment for USPS on Allen’s age-discrimination claim. As to Allen’s
second termination from Central Station, we agree with the district court that
Allen has carried her burden to show that she was within the protected class,
was discharged, and was qualified for her position. USPS does not dispute
these findings on appeal. 3
But we disagree with the district court’s conclusion that Allen failed
on her prima facie showing by not submitting evidence that she was
3
In the district court, USPS disputed Allen’s qualifications for the position, but
the district court properly found that Allen need only show that she meets “objective hiring
criteria.” Medina v. Ramsey Steel Co., 238 F.3d 674, 681 (5th Cir. 2001). On appeal, USPS
does not argue that Allen fails the qualification requirement of her prima facie case.
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discharged because of her age. Allen asserts in her affidavit that she was
treated less favorably than a twenty-six-year-old younger carrier assistant,
Chloe Bickman. She provides a series of examples in support of this claim,
including that Bickman was given many privileges that Allen was denied.
Allen also points to two age-related remarks from her superiors at USPS. She
attests that upon reinstating her, Porche said that he does not like to hire
older workers because they “tend to get hurt and go on restriction until they
retire.” Porche said that he “did not need another carrier with restrictions
on his clock.” Allen also attests that Lagrue once told her to get her “old
ass” back to work.
We begin with Allen’s comparison to Chloe Bickman. To qualify as
“similarly situated” for the purpose of an employment-discrimination claim,
the employees being compared must have the same job or responsibilities,
share the same supervisor or have their employment status determined by
the same person, and have comparable violation histories. Lee v. Kansas City
S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (citations omitted). The district
court found that Allen could not rely on a comparison to Bickman because
Allen failed to identify Bickman’s age, supervisor, violation history, or
whether she was also a probationary employee. But the record contains this
information. Specifically, the final agency decision on Allen’s EEO
complaint notes that Chloe Bickman was twenty-six years old, and that she,
like Allen, was a probationary 4 city carrier assistant at Central Station in New
4
The record support for the fact that Bickman was a probationary employee is
USPS’s recounting of Allen’s own assertion. But USPS has not contradicted this fact in
either its final agency decision or as a party to this appeal. (USPS says in its brief that Allen
has “failed to establish” that Bickman was a probationary employee, but this statement
ignores the agency decision in the record and conspicuously stops short of denying that
Bickman was probationary.) We therefore find that at this stage, this undisputed assertion
in the record is sufficient to create a fact issue as to Bickman’s probationary status.
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Orleans, supervised by Charlotte Lagrue. Allen and Bickman thus had the
same job, at the same location, under the same supervisor. As to similar
violation histories, the agency decision states that there was “no indication
that Ms. Bickman engaged in the same misconduct or subpar performance as
[Allen].” But while Bickman may indeed lack a history of misconduct, at this
stage the summary-judgment record precludes a dispositive finding that her
violation history is different from Allen’s, as Allen has submitted sworn
statements contradicting the very “misconduct” and “subpar performance”
with which she is charged. To discard the Bickman comparison on the basis
of Allen’s and Bickman’s divergent “violation histories” is to credit USPS’s
account of Allen’s employment, while discrediting Allen’s own. This is
impermissible at the summary-judgment stage. Kevin M. Ehringer Enters.,
646 F.3d at 325.
Allen’s prima facie showing finds further support in her evidence of
age-related comments by Porche and Lagrue. Workplace remarks offered not
as direct evidence but as “circumstantial evidence alongside other alleged
discriminatory conduct” must satisfy a “more flexible” two-part test. 5 Reed
v. Neopost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012). Under this test, the
plaintiff must show “(1) discriminatory animus (2) on the part of a person
that is either primarily responsible for the challenged employment action or
by a person with influence or leverage over the relevant decisionmaker.”
Id.
(citations omitted). Here, Allen’s evidence of Porche’s and Lagrue’s
5
We often describe this test as “more flexible” because it is less stringent than our
other “stray remarks” test, which applies to employer remarks offered as direct evidence
of discrimination. See Goudeau, 793 F.3d at 475. Age-related remarks offered as direct
evidence of discrimination must “be proximate in time to the terminations, made by an
individual with authority over the employment decision, and related to the challenged
decision.”
Id. (citing Brown v. CSC Logic, Inc.,
82 F.3d 651, 655 (5th Cir. 1996)). Allen
does not offer Porche’s and Lagrue’s comments as evidence of direct discrimination.
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remarks is “just one ingredient in the overall evidentiary mix,” Goudeau, 793
F.3d at 475, so the remarks are subject to the flexible two-part test.
Porche’s comment that he does not like hiring older workers satisfies
this test. First, the remark creates an issue of fact as to Porche’s
discriminatory animus, as it reflects a “desire to replace older employees
with younger ones.” McMichael v. Transocean Offshore Deepwater Drilling,
Inc., 934 F.3d 447, 458 (5th Cir. 2019). Second, it is undisputed that Porche
is the person “primarily responsible” for Allen’s termination. Reed,
701 F.3d
at 441.
Similarly, Lagrue’s instruction to Allen that she get her “old ass”
back to work also satisfies the two-part test. First, the remark “references
age in a derogatory or stereotypical way,” and thus creates a fact issue as to
Lagrue’s discriminatory animus. McMichael, 934 F.3d at 458. Second, while
Lagrue was not the person who fired Allen, she qualifies as a person with
“influence or leverage over the official decisionmaker.” Russell v. McKinney
Hosp. Venture,
235 F.3d 219, 226 (5th Cir. 2000). Lagrue was Allen’s
supervisor and is the person who conducted Allen’s performance
evaluations. She is no “ordinary coworker” lacking influence over Allen’s
employment status. See
id.
Accordingly, Allen’s evidence of (1) Porche’s comment, (2) Lagrue’s
comment, and (3) unfavorable treatment compared to Bickman, collectively
create genuine disputes of fact material to Allen’s prima facie showing on her
age-discrimination claim. The burden therefore shifts to USPS to articulate
a nondiscriminatory reason for Allen’s termination. USPS has done so: it
says that Allen was fired for poor job performance.
The burden thus shifts back to Allen to show that the proffered reason
was pretext. She may do so by showing that USPS’s explanation is “false or
‘unworthy of credence.’” Laxton, 333 F.3d at 578. Here, too, issues of
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material fact preclude summary judgment for USPS. Most significantly,
Allen’s twelve-page affidavit, sworn to under penalty of perjury, contains
extensive factual assertions supporting her contention that USPS made it
impossible for her to succeed upon her reinstatement at Central Station. The
uniting theme of her affidavit is that “Porche and Lagrue set [her] up to fail
so Porche could terminate [her] for poor performance.” This is a direct
challenge to USPS’s proffered explanation.
In the affidavit, Allen details multiple specific incidents suggesting, at
best, innocence of poor performance and, at worst, sabotage. Notably, none
of these facts was discussed by the district court. Allen states that her
expanded street times owe to Lagrue’s instruction that she clock into street
time even when working in the office, and to her supervisors’ altering of her
clock rings to reflect street time rather than office time. She states that
supervisors hid mail from her and then summoned her back, claiming that
she had left mail behind, that they assigned her different routes, making it
difficult for her to learn and deliver one route, and that Lagrue repeatedly
denied her an arrow key necessary to complete certain deliveries, causing her
to return to the station with undelivered mail. These facts, if ultimately
found credible at trial, would permit a reasonable factfinder to conclude that
USPS’s proffered explanation for Allen’s termination is false or unworthy of
credence.
Additionally, Webster’s declaration further undermines USPS’s
proffered reason. According to his personal review of Allen’s file, multiple
forms that would have documented Allen’s performance deficiencies were
absent. And the documents that he did find in the file tend to support Allen’s
version of events, including a report showing that Allen’s clock rings were
changed by management daily. The district court did not give proper weight
to Webster’s declaration, noting that it “merely delineates [Webster’s]
personal observations about how Allen’s noted deficiencies might have been
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better documented.” But a lack of documentation of Allen’s purported job
deficiencies is germane to Allen’s theory of pretext in this case: that
management’s claims of poor performance were artificial. See McMichael,
934 F.3d at 459 (“A plaintiff can also show pretext by showing a departure
from standard procedure.”). Notably, USPS offers no explanation for the
dearth of documentation noted in the Webster declaration. A reasonable
factfinder could rely on Webster’s declaration in support of a finding that
USPS’s stated reasons for Allen’s termination were pretextual.
Finally, we hold that application of the “same actor” inference in
favor of USPS is not appropriate under these facts. The district court, at
USPS’s urging, reasoned that Allen’s effort to show pretext is undermined
by the fact that Porche—the person responsible for firing her—was also the
person who hired her. This may seem a straightforward application of our
case law, under which, “when the individual who allegedly discriminated
against the plaintiff was the same individual who hired the plaintiff,” there
arises “an inference that discrimination was not the motive behind plaintiff’s
termination.” Russell, 235 F.3d at 228 n.16 (citing Brown v. CSC Logic, Inc.,
82 F.3d 651, 658 (5th Cir. 1996)). This inference rests on the proposition that
it is “irrational” to suspect that “animus exists in termination but not in
hiring.” Brown,
82 F.3d at 658 (quoting Proud v. Stone,
945 F.2d 796, 797 (4th
Cir. 1991)). “From the standpoint of the putative discriminator, it hardly
makes sense to hire workers from a group one dislikes . . . only to fire them
once they are on the job.”
Id. (cleaned up) (quoting Proud,
945 F.2d at 797).
But application of the “same actor” inference here does not comport
with the rationale beneath the inference. While it is true that Porche was the
person who re-hired Allen, 6 he did so pursuant to a settlement of her EEO
6
The parties do not point to record evidence indicating whether it was Porche who
initially hired Allen at USPS in April 2018. The district court based its “same actor”
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complaint, which itself arose out of his having previously fired her. Allen’s
re-hiring thus does not reflect a presumptive absence of animus on Porche’s
part. On the contrary, animus in Allen’s termination is consistent with
animus in what was, according to Allen, not an arms-length hire but instead
a begrudging re-hire effectuated to settle a discrimination complaint. Cf.
Fitzpatrick v. Pontotoc Cnty., 612 F. App’x 770, 776 n.5 (5th Cir. 2015) (noting
in an age-discrimination case that “[t]he same actor inference likely does not
apply” to an employer’s decision to retain an employee, rather than a
decision to hire him).
For these reasons, USPS has failed to demonstrate that there are no
genuine disputes of material fact. Summary judgment was not appropriate
on Allen’s age-discrimination claim as to her February 2019 termination from
USPS. The order of the district court is reversed in this respect.
V.
We next consider Allen’s claims that she was subject to retaliation for
her prior EEO activity. The Supreme Court has held that the federal-employee provision of the ADEA “prohibits retaliation against a federal
employee who complains of age discrimination.” Gomez-Perez v. Potter, 553
U.S. 474, 491 (2008) (citing 29 U.S.C. § 633a(a)). “[R]etaliation claims
under the ADEA also utilize a burden-shifting analysis at the summary-judgment stage, starting with the prima facie case.” 7 Heggemeier v. Caldwell
inference on Allen’s re-hiring by Porche in November 2018. USPS sticks to this approach
on appeal. We therefore do not consider the effect of the same-actor inference on a scenario
in which Porche was also the initial hiring official.
7
As noted supra note 2, the Supreme Court held in Babb that federal-sector ADEA
claims under § 633a(a) do not require a showing of but-for causation, and at least one circuit
has read Babb to foreclose use of the McDonnell Douglas framework for such claims. Lewis,
2022 WL 2377164, at *10; Babb,
992 F.3d at 1204. As Babb was concerned only with age-discrimination claims, not retaliation claims, see
140 S. Ct. at 1171, it may fairly be said that
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Cnty., 826 F.3d 861, 869 (5th Cir. 2016) (citing Patrick v. Ridge,
394 F.3d 311,
315 (5th Cir. 2004)).
To make her prima facie showing on her ADEA retaliation claim,
Allen must show that (1) she engaged in a protected activity, (2) she suffered
an adverse employment action, (3) there is a causal link between the
protected activity and the adverse employment action, and (4) she was
qualified for the position. Wooten v. McDonald Transit Assocs., Inc., 788 F.3d
490, 496-97 (5th Cir. 2015) (citing Holtzclaw v. DSC Commc’ns Corp.,
255
F.3d 254, 259 (5th Cir. 2001)).
A.
We begin with Allen’s retaliation claim vis-à-vis her second
termination from Central Station. The only element of Allen’s prima facie
case at dispute on appeal is her showing that there was a causal link between
her protected activity and her discharge.
The district court found that Allen could not establish causation based
on timing alone. We agree that the approximately six-month gap between
Allen’s initial EEO contact in August of 2018 and her termination in
February 2019 is too long to support Allen’s prima facie showing. See Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (noting that the
Babb casts no doubt on the use of McDonnell Douglas for retaliation claims. But federal-employee ADEA claims based on retaliation derive from the same statutory provision as
those for age discrimination. Gomez-Perez,
553 U.S. at 479 (holding that “the statutory
phrase ‘discrimination based on age’” in § 633a(a) “includes retaliation based on the filing
of an age discrimination complaint”). Accordingly, the post-Babb viability of McDonnell
Douglas with respect to federal-employee ADEA retaliation claims remains an open
question. But again, because the parties here have not briefed the issue and instead embrace
McDonnell Douglas, and because Allen’s evidence suffices to withstand summary judgment
even under McDonnell Douglas, we need not decide the precise effect of Babb in this case.
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temporal proximity must be “very close” and citing with approval cases
rejecting three-month and four-month periods as insufficiently proximate).
But Allen also initiated EEO contact on January 6, 2019,
approximately seven weeks before her termination, complaining of age
discrimination. This too is protected ADEA activity. See Gomez-Perez, 553
U.S. at 491. And as the district court acknowledged, this timing is sufficiently
close to meet Allen’s causation burden at the prima facie stage. See, e.g.,
Richard v. Cingular Wireless LLC,
233 F. App’x 334, 338 (5th Cir. 2007)
(accepting a two-and-a-half-month period as sufficient for causation at the
prima facie stage); Richardson v. Prairie Opportunity, Inc.,
470 F. App’x 282,
287 (5th Cir. 2012) (finding that a “less than two-month span between the
protected activity and the adverse action is sufficient ‘temporal proximity’
for a prima facie showing of causation.”). But the district court then erred
by concluding that Allen had “not produced any evidence” that Porche had
knowledge of this renewed contact. Allen had indeed produced such
evidence, and again, it is contained in her affidavit. Allen attests that,
“[b]ased on [her] understanding of the USPS’s handling of EEO complaints,
[her] complaint EEO ADR Specialist, Cabrini Hales[,] then contacted
Porche, Lagrue, and [Bianca] Martin to see if there could be a resolution via
redress if possible.” Viewing the evidence most favorably to Allen as the
nonmovant, this sworn assertion creates a genuine dispute of material fact as
to whether Porche was aware of Allen’s January EEO contact by the time he
fired her in February. 8 We therefore conclude that Allen has created a
genuine dispute of material fact as to whether her renewed EEO contact is
8
Contrary to the district court’s finding, Porche’s declaration stating that he knew
of Allen’s 2018 complaint does not somehow defeat this fact issue. Porche does not
mention—much less deny knowledge of—Allen’s 2019 complaint.
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causally linked to her termination weeks later. She has thus made her prima
facie showing for the purposes of withstanding summary judgment.
Again, USPS proffers Allen’s poor job performance as its
nondiscriminatory reason for her termination, and again Allen must
demonstrate that this reason is pretextual. We have already concluded, in
assessing Allen’s age-discrimination claim, that Allen’s evidence creates a
fact issue as to whether USPS’s proffered reason for her termination is
pretextual. Specifically, Allen has submitted evidence that her supervisors
set her up for failure by obstructing her efforts to succeed at her job, including
by hiding her mail, making her clock into street time when she was in fact in
the office, and denying her the tools necessary for her deliveries. Moreover,
Allen has submitted evidence, via Webster’s declaration, that USPS did not
document the performance deficiencies it relies on as the basis for Allen’s
termination. And again, the circumstances of Porche’s “hiring” of Allen
render inappropriate the “same actor” inference. A reasonable jury could
find, based on this evidence, that USPS’s reason for terminating Allen was
pretext for retaliation based on her EEO activity directed against the USPS.
Summary judgment for USPS was inappropriate on this claim, and the
judgment of the district court is reversed in this respect.
B.
Finally, we turn to Allen’s retaliation claim as to the May 2019
recission of her offer at the Metairie Post Office. We find that material
factual disputes preclude summary judgment on this claim as well. Allen
asserts in her affidavit that McFall told her that “he rescinded the job offer
for the second Metairie job opening . . . due to [her] EEO activity.”
Similarly, Allen states that USPS field recruiter Tracy Segura told her that
the offer was rescinded because Allen was “at war with the post office due to
[her] current EEO activity.” Because Allen’s affidavit testimony about
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Segura’s and McFall’s remarks constitutes direct evidence of retaliation, we
need not proceed through the McDonnell Douglas burden-shifting framework.
See Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir. 1993)
(“Direct evidence is evidence which, if believed, proves the fact without
inference or presumption.”); Herster v. Bd. of Supervisors of La. State Univ.,
887 F.3d 177, 185 (5th Cir. 2018) (“The McDonnell Douglas test is
inapplicable where the plaintiff presents direct evidence of discrimination.”
(quoting Portis v. First Nat’l Bank,
34 F.3d 325, 328 (5th Cir. 1994)); see also
Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 511 (2002) (“[I]f a plaintiff is able
to produce direct evidence of discrimination, he may prevail without proving
all the elements of a prima facie case.” (citation omitted)). A reasonable jury
could, based on this evidence, find that Allen’s offer for the Metairie station
was rescinded in retaliation for her protected EEO activity directed against
USPS.
We therefore reverse summary judgment as to this claim.
VI.
The judgment of the district court is AFFIRMED in part and
REVERSED in part. Summary judgment is reversed as to Allen’s age-discrimination and retaliation claims arising out of her February 26, 2019
termination from USPS Central Station, as well as her retaliation claim
arising out of the May 2019 recission of her job offer at the Metairie USPS
station. Dismissal of all other claims is affirmed.
We REMAND for further proceedings consistent with this opinion.
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